Wilcox, French, Weinberg JJ
The native title claim covers 1,120 square kilometers south east of Tennant Creek in the Northern Territory and an additional 27 hectares over the Hatches Creek township which was never developed. The area cover part of the traditional country of Aboriginal people comprising seven landholding estate groups. All of the areas under claim have been the subject of pastoral leases in the past but there are no current pastoral leases over any of the area.The Conservation Land Corporation holds a lease over the entire area except the townsite under the Parks and Wildlife Commission Act (NT).
Issue 1: Identification of native title holders
The first issue is whether the native title holders are one community comprising seven estate groups or whether each estate group holds native title rights and interests in respect of their estate area. There is also an issue in relation to adoption and who is a member of the native title holding group.
The Full Court found that evidence of extensive connections across the seven groups supports the primary judge's characterisation of them as one native title holding community. Further, that the primary judge was correct in finding that the necessary connection with the land in the claim area was shown to exist at a communal or claim group level. Thus, the primary judge was correct in concluding that the relevant title is communal over the whole area.
The North Territory contended that a right to enforce traditional laws and customs had been recognised with respect to incorporation of native title holders ‘by virtue of non-descent based connections, including adoption or birthplace affiliation’. The Northern Territory submitted that this was not a right in relation to lands and waters, and that this gave effect to traditional laws and customs as a system of law operating concurrently with non-indigenous law.
The Full Court found that the primary judge was correct in observing that membership of a society can be defined by rules associated with particular rights and interests. To build a criterion of group acceptance into the definition of membership is not to recognise a right to enforce traditional law and custom.
Issue 2: Native title rights and interests
The second issue relates to the native title rights and interests recognised in the determination. The State challenges the inclusion of rights to control access where there are no exclusive native title rights, and the formulation of other rights on the grounds that they do not relate to the land or are otherwise not cognisable by the common law.
A number of the native title rights and interests were challenged by the Northern Territory on various grounds including that they were not rights or interests ‘in relation to land or waters’. The Full Court notes that each of the native title rights and interests includes a right to conduct activities necessary to give effect to it.
Right to live on the land and to erect structures
The claim is affected by historical pastoral leases and the relevant extinguishment of native title rights and interests derives only from inconsistency with the rights historically conferred by those leases. The Full Court followed Neowarra in noting that the right to ‘live’ on the land can be interpreted as a right to live permanently on the land without any conflict with pastoral leaseholders’ rights. The Full Court notes that the issue is then whether a right to permanent settlement is inconsistent with a pastoral leaseholder's rights. The Full Court found there is no reason why these must be inconsistent.
Teaching physical and spiritual attributes on the land
The Northern Territory submitted that the right to teach the physical and spiritual attributes of places and areas of importance on or in the land or waters is akin to a right to maintain and protect cultural knowledge. The Full Court noted that Ward rejected the right to maintain and protect cultural knowledge as it related to information not land. With the consent of the parties, the Full Court amended the right to specify that the activity could take place 'on the land'.
Right to protect sites of importance
The Northern Territory submitted that this right necessarily involves the assertion of an impermissible right to control access and to exclude others from the land. Moreover, that the right to exclude and control access had been extinguished by the grant of the pastoral leases. The Full Court found that the word 'protect' does not, in ordinary usage, imply the exercise of control over the thing being protected. The primary judge was not shown to have erred.
Right to make decisions about access to and use and enjoyment of the land
The question is whether partial extinguishment, caused by the pastoral leases, left in place a qualified right to exclude persons other than the relevant pastoral lessees and their invitees or other statutory entrants. The Full Court found that the right to control access could not be sustained where there were no exclusive native title rights and interests because those rights could not survive partial extinguishment. The right was amended.
Right to trade
The Northern Territory contended that the right to trade is not a right or interest in relation to land or waters notwithstanding that the asserted objects of the trade are resources of the land and waters. The Full Court stated that the right to trade is a right relating to the use of the resources of the land. The Full Court found that there was no evidentiary basis upon which the right to trade was based. The right to trade was removed from the determination.
Right to control disclosure of spiritual beliefs or practices
The Northern Territory contended that this right was not one inrlaion to the claim area. The Full Court found that 'spiritual beliefs and practices' should be treated in the same way as 'cultural knowledge' was in Ward. The right was removed from the determination.
Right to determine membership of the landholding group
The applicants accepted that this right is more appropriately recognised as part of their laws and customs rather than as a right or interest in relation to the claim area. Further, it is subsumed by the provisions relating to the identification of native title holders. The right was removed from the determination.
Right to be acknowledged as the Aboriginal owners of the land
The issue surrounding this right is its lack of definition and enforceability. The Full Court stated that "symbolic statements which are empty of content have no place in a determination of rights." The right and a subsequent reference to it were removed from the determination.
Issue 3 : Application of s 47B
The third issue concerns the existence of native title rights in the Hatches Creek townsite. This issue involves the application of s 47B of the Native Title Act 1993 (Cth) which allows prior extinguishment to be disregarded on vacant Crown land if the applicants occupied the land at the time of their application. There was no dispute that Hatches Creek was apart of the applicant's traditional country. Further, there was evidence of activity in its vicinity. The Full Court found that the primary judge was correct in determining that s 47B applies to the townsite.